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Claiming damages for unlawful arrest

15:20 (GMT+2), Mon , 15 April 2019

Case: Minister of Police v Dhali

In the matter of Minister of Police v Dhali, the Court was tasked in determining whether the arrest of the Plaintiff was lawful and if not, whether to award damages to the Plaintiff. The Court of first instance found that the arrest was unlawful and awarded the Plaintiff R130 000.00 in damages. The Minister of Police then appealed to the High Court on the grounds that the arrest of the Plaintiff was justified and lawful.

The Plaintiff was arrested by a peace officer without a warrant on the charge of attempted murder. The Court held that the criteria applicable to this matter, as prescribed in Section 40(1)(b) of the Criminal Procedure Act 51 of 1977, was not properly met and stated that, before a peace officer may arrest a person without a warrant, the peace officer must reasonably suspect that said person had committed an offence listed in Schedule 1 of the Act. The Court further held that a peace officer, in making an arrest without a warrant, must exercise his discretion and take all reasonable steps to ensure that the arrest is called for, including interviewing the suspect and considering his version of events.

The Court ultimately held that the peace officer who arrested the Plaintiff did not act reasonably and lawfully in exercising his discretion to arrest the Plaintiff without a warrant and as such held that the arrest was not justified. The Court confirmed the initial monetary award of R130 000.00 and the Defendant was ordered to pay the costs of the appeal.

Written by: Ilette Pilon (BA Law; LL. B)

Mini Summary by LexisNexis (

The respondent had sued the appellant for damages arising from an arrest without a warrant. The appellant pleaded that the arrest and detention were at the instance of members of the South African Police Force acting lawfully in terms of section 40(1)(b), alternatively section 40(1)(f) of the Criminal Procedure Act 51 of 1977 as read with section 205 of the Constitution, he having been reasonably suspected of having committed the offence of attempted murder.

The trial court found that the appellant had failed to discharge the onus of justifying the arrest. It awarded the respondent R130 000 in damages.

Held that any reliance on section 40(1)(f) of the Act was clearly misplaced and thus fell to be ignored.

An appeal court will be slow to upset the findings made both on the facts and credibility. Where there is no misdirection of fact, the presumption is that the conclusion is correct and that will only be reversed if the court is convinced that it is wrong. In the present matter, the court was satisfied that, save for one aspect, the trial court’s findings on fact and credibility had not by any means been shown to have been such as to warrant interference and were presumed to be correct.

The only real issue on appeal was whether, having correctly rejected the appellant’s version on the facts, the trial court erred in failing to consider whether on the respondent’s evidence, the arrest was nevertheless justified.

The jurisdictional facts for a section 40(1)(b) defence are that the arrestor must be a peace officer, entertaining a suspicion that the suspect (the arrestee) committed an offence referred to in Schedule 1 and the suspicion must rest on reasonable grounds. Police officers purporting to act in terms of section 40(1)(b) of the Act should investigate exculpatory explanations offered by a suspect before they can form a reasonable suspicion for the purpose of lawful arrest.

Examining the conduct of the police the court found that their actions did not meet the standard set out above. The appeal was therefore dismissed.